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Jeffrey Toobin: Election 2000 anniversary

Jeffrey Toobin is a staff writer at The New Yorker, and a legal analyst for ABC News. He is the author of "Too Close to Call: The 36 Day Battle to Decide the 2000 Election," as well as books about the Clinton impeachment and the O.J. Simpson trial. He joined the chat room from Indiana.

CNN: Thank you for joining us today, Jeffrey Toobin, and welcome.

JEFFREY TOOBIN: Always a pleasure to talk to the intelligent fans of CNN on the air and online.

CNN: Much was made of votes being 'counted and recounted.' Yet you found that many votes were never really recounted at all. How did this happen?

TOOBIN: To me, this is the most shocking disclosure in "Too Close to Call." Under Florida law, all the votes were supposed to be run through the machines within 48 hours of the election, but Katherine Harris' office did not tell the counties that used optical scan ballots to recount their votes, so 1.25 million votes -- approximately a quarter of all the votes in the state -- have never been recounted to this day. So every time James Baker said the votes had been counted and recounted, that simply wasn't the case.

CNN In-Depth: Election 2000 
Chat transcript: Bill Press: 'Spin' and Election 2000 

CHAT PARTICIPANT: What would the outcome of the election have been if the Supreme Court had not given the presidency to then-candidate George Bush?

TOOBIN: That is the subject of much speculation. The first big recount, done by the Miami Herald, provided an ambiguous result, suggesting that Gore would have won under some standards, and Bush under others. There will be a big new recount released this Sunday, sponsored by what's known as the Media Consortium, and it will provide more data on that question, but I don't expect that the answer will be satisfactory to everyone.

CHAT PARTICIPANT: Has anyone in the Bush administration been especially helpful with your work?

TOOBIN: What was especially pleasing to me in reporting "Too Close to Call" was that I received enormous cooperation from people on all sides. Everyone involved recognized the historic importance of this recount, and they were very anxious to talk about their roles. That goes for people on both sides.

CNN: Clinton and Gore not only clashed about how the vice president should handle his campaign, but also as to how the recount should be conducted. What were their differences?

TOOBIN: One illustration: On Saturday afternoon, December 9, the Supreme Court stopped the recount in its tracks. Gore sent a blackberry message to his spokesman that said "Make sure that no one trashes the Supreme Court." Across town at the White House, when Bill Clinton got the same news, he said to an aide, "Gore ought to attack those bastards." Clinton always supported a more confrontational approach than the one Gore ultimately took.

CHAT PARTICIPANT: Much was made of the Gore lawyer memo outlining which ballots to challenge. Did your research find any similar Bush legal memos or verbal instructions?

TOOBIN: I think you're referring to the memo that instructed Gore's lawyers how to challenge military absentee ballots. The Gore campaign, led by Senator Lieberman, ultimately decided to back off from those challenges. The Bush campaign prepared memos to show their lawyers how to argue both sides of the military ballot issue: how to get them in or keep them out. That was typical of their better level of preparation.

CHAT PARTICIPANT: How did the inquiry into voting violations in predominately minority areas turn out?

TOOBIN: I concluded in "Too Close to Call" that there were no organized attempts to keep black voters from the polls. No roadblocks, no systematic scrubbing of the voter lists. It is true, however, that many thousand minority voters in Duval County, which is Jacksonville, had their votes thrown out because of a misleadingly designed ballot.

CHAT PARTICIPANT: Mr. Toobin, how have the events of the 2000 election changed elections?

TOOBIN: Today is the one year anniversary of the 2000 election. With the single honorable exception of Florida itself, the nation has done almost nothing to reform its outdated election procedures. So, we can expect problems to recur sooner rather than later.

CHAT PARTICIPANT: Mr. Toobin: Exactly which votes were re-counted? The over-votes, under-votes, discarded ballots?

TOOBIN: That is a complicated question. Palm Beach, Broward, and Volusia did hand recounts of all their ballots, but Palm Beach missed the deadline to be included. Miami-Dade County never finished its manual recount. There were no other hand recounts in the rest of Florida's 61 other counties.

CNN: You allege that the Gore campaign wanted to subpoena Katherine Harris about her involvement in the recount. What were they trying to gain, and why did they back away from it?

TOOBIN: Several lawyers on Gore's team wanted to show that the person in charge of counting the votes was a partisan and biased participant in the process. They thought they could prove that point by putting Harris on the witness stand. But Gore himself thought the idea was too confrontational, and rejected the plan to subpoena her.

CHAT PARTICIPANT: Do you think that it will have any effect on the American public going to the polls in 2004?

TOOBIN: I think the political impact will probably be fairly small. President Bush has become a president like any other, judged by his performance in office, not by the circumstances of his arrival there.

CNN: You conclude that the wrong man was inaugurated as president in 2001. Yet a year later -- and in light of September 11 -- are many Americans simply over it?

TOOBIN: I think most Americans are over it. "Too Close to Call" is a work of history, not current events. But I do think it is always important that we understand as clearly as possible what happened in the past, so that we don't repeat the same mistakes.

CHAT PARTICIPANT: Do the citizens of Palm Beach have any legal recourse regarding the failure of county officials?

TOOBIN: Not really. There is certainly nothing that could be done to change the results in 2000, and the only other thing that voters might do is vote out of office the people responsible for the problems.

CNN: Would Bush be president without Jim Baker?

TOOBIN: Good question. As I recount in "Too Close to Call," Baker possessed an extraordinary combination of legal acumen and political street smarts that was clearly superior to anything the Gore campaign could offer in response. Certainly, Baker was the perfect man for the job that Bush gave him.

CHAT PARTICIPANT: Will the Bush presidency always have a [question mark] by his name? Not elected by the popular vote but by a controversial vote?

TOOBIN: A lot depends on what happens in 2004. If Bush wins again, he will relegate the 2000 controversy to relative insignificance. If he loses, the 2000 story will loom much larger.

CNN: Do you have any closing comments to share with us?

TOOBIN: Thank you for your interest in "Too Close to Call."

CNN: Thank you for joining us today.

TOOBIN: Thank you.

Jeffrey Toobin joined the chat room by telephone and CNN provided a typist. This is an edited transcript of the interview which took place on Wednesday, November 7, 2001.


• University of Chicago National Opinion Research Center: Florida Ballot Project
• 'Too close to call: The 36-Day battle to decide the 2000 election

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